Taylor , 174 Ct. Cl. 1266 ( 1966 )

Military pay; retired pay (nondisability); computation of pay; ra/nk for retirement purposes; satisfactory service.— Plaintiff retired as an enlisted man in the regular Army in 1948 having previously served on active duty as a captain, his commission expiring in December of 1946. Thereafter he was given a temporary promotion to major under the terminal leave promotion policy of the Army. In February 1947, plaintiff was commissioned a major in the United States Army Keserve, a permanent appointment. In 1958 plaintiff was advanced on the retired list to the grade of captain. Plaintiff sues to recover the difference between the retired pay of a captain wMch he has been receiving and the retired pay of his permanent rank of major in the United States Army Eeserve to which he claims he is entitled under 10 U.S.C. § 3964. Defendant urges that a literal reading of the statute involved does not permit plaintiff’s advancement on the retired list to the Mghest permanent commissioned grade in wMch he served satisfactorily and that therefore he is not entitled to promotion to the grade of major. Defendant also contends that if the court should hold plaintiff is entitled to advancement to the highest permanent grade in which he served satisfactorily, then plaintiff may not recover because be lias not met the six months service requirement provided for in applicable Army regulations. The case came before the court on the parties’ cross-motions for summary judgment submitted without oral argument. Upon consideration thereof the court concluded that plaintiff’s permanent appointment as major would entitle him to advancement on the retired list under 10 U.S.C. § 3964 (Friestedt v. United States, 173 Ct. Cl. 447, 352 F. 2d 530 (1965)), but that plaintiff is not entitled to recover since he did not serve the required six months in the grade of major. Roberts v. United States, 151 Ct. Cl. 360 (1960). On January 7, 1966, the court ordered that defendant’s motion for summary judgment be granted and the petition be dismissed. Plaintiff’s motion for rehearing or reconsideration was denied on April 15, 1966.